By Hank Goldberg
The objective of this article and accompanying self-study test is to familiarize bench officers and lawyers with reduction of felonies to misdemeanors, and misdemeanors to infractions, under Penal Code Section 17. Readers will learn about when reductions may be ordered, what type of cases cannot be reduced, the criteria judges use in considering whether to reduce, and the consequences of ordering a reduction.
Reduction of a Felony to a Misdemeanor
Penal Code Section 17(b) provides authority for courts to reduce alternate felony/misdemeanor or "wobbler" charges to misdemeanors. The purpose of 17(b) is to benefit those who deserve more lenient treatment, encourage guilty pleas by limiting potential penalties, and to save court time and expense. Malone v. Superior Court, 47 Cal. App. 3d 313 (1975). A Section 17(b) reduction is reviewed on appeal under the abuse of discretion standard. People v. Superior Court (Alvarez), 14 Cal. 4th 968 (1997).
The court can reduce a wobbler before or at the preliminary hearing prior to the holding order. Section 17(b)(5). The reduction may also be ordered at or after a judgment or sustained petition. Sections 17(b)(1) (after judgment), 17(b)(2) (upon committing to Division of Juvenile Justice with a sustained petition), 17(b)(3) (upon granting probation). Between the holding order and the judgment, the court cannot reduce unless the People file a complaint or amended complaint alleging the misdemeanor. Therefore, if the defense wants to plead to a misdemeanor and the court agrees, but the People object, the court could indicate that upon judgment the court will reduce the charge to a misdemeanor. See People v. Trausch, 36 Cal. App. 4th 1239 (1995) (trial court upheld where trial court announced its intention to reduce open case to misdemeanor and impose six-year sentence for a violation of probation if defendant were to plead guilty). However, it is improper to indicate that the court will reduce to a misdemeanor only if the defendant pleads since this would coerce the plea. Hartman v. Superior Court, 135 Cal. App. 3d 205 (1982).
Reductions that Are Barred
A wobbler cannot be reduced to a misdemeanor after execution of a state prison sentence has been suspended. In People v. Wood, 62 Cal. App. 4th 1262 (1998), the trial court sentenced defendant to six years in prison on a wobbler, execution of the prison sentence was suspended and defendant was granted three years of probation. After two years, the probation department recommended that the felony be reduced to a misdemeanor. In the Wood case, the trial court properly concluded that it could not do so because execution of a state prison term suspended rendered the offense a felony.
A straight felony - one that is not identified as a wobbler - cannot be reduced to a misdemeanor under Penal Code Section 17, even as part of a negotiated plea. In People v. Beebe, 216 Cal. App. 3d 927 (1989), the defendant entered into a negotiated plea to a straight felony, lewd acts on a child (Pen. Code Section 288(a)), with an agreement the case would be reduced to a misdemeanor child molestation (Pen. Code Section 647a, now Section 647.6) upon successful completion of probation. The Court of Appeal found that the trial court improperly accepted a plea that would reduce a straight felony to a misdemeanor. Beebe held that, since Penal Code Section 288(a) is a straight felony, it cannot be reduced to a misdemeanor under Penal Code Section 17(b).
Similarly, Penal Code Section 18 also provides for reducing certain felonies to misdemeanors. "[Penal Code S]ection 18's misdemeanor option, however, is limited to felonies the Legislature has specified are punishable by imposition of a fine as an alternative to state prison. [Citation] Crimes falling in this category are relatively rare, but they exist (See, e.g., [Pen. Code, Sections] 107 [escape from a reformatory or state hospital], 148.3 subd. (b) [false report of an emergency], 337b [point shaving in an athletic contest].)" People v. Mauch, 163 Cal. App. 4th 669 (2008). As with other wobblers, only identified offenses may be reduced to misdemeanors, meaning the trial court in Mauch erred in reducing the straight felony cultivation of marijuana (Health & Saf. Code Section 11358), to a misdemeanor.
Further, a judge cannot reduce a wobbler to a misdemeanor over the objection of a defendant. Penal Code Section 17(b)(4) provides, in this regard, a judge can reduce a wobbler to a misdemeanor "unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint."
The three strikes law (Pen. Code Sections 667(b)-(i), 1170.12) did not abrogate Penal Code Section 17(b) discretion, even when "strike" priors are proved. In Alvarez, the Supreme Court held that the trial court can order a Section 17(b) reduction even in a three strikes case.
In Alvarez, the trial court did not abuse its discretion in reducing a possession of methamphetamine case to a misdemeanor even though defendant had four prior strikes. Defendant apparently committed the four strikes (residential burglaries) to support his drug habit, and he also committed four misdemeanors; but, he cooperated with law enforcement, the strikes were relatively old and did not involve violence, and he was caring for a disabled friend when he was arrested. Under the applicable "extremely deferential and restrained standard by which appellate courts are bound in these matters," the trial court did not abuse its discretion.
The Court of Appeal in Trausch held discretion was not abused in reducing second degree burglary involving stealing chocolate cake to a misdemeanor, where defendant had four strike priors and three state prison priors, but the court also ordered he serve six years in prison pursuant to a separate case where defendant was on probation when he stole the cake.
However, the trial court abused its discretion in People v. Dent, 38 Cal. App. 4th 1726 (1995). There, the trial court clearly believed the defendant should be treated as a felon, but reduced the charge only to avoid the effects of the three strikes law. Reduction based on personal antipathy for the effects of the three strikes law on the defendant was improper.
Reduction of Misdemeanors
Some misdemeanors can be reduced to infractions. The court, with the defendant's consent, may reduce a small number of misdemeanor offenses to infractions. (Pen. Code Sections 17(d)(2), 19.8.) The most notable ones are Penal Code Section 415 (fighting in public), and Vehicle Code Sections 12500 and 14601.1 (driving without valid license). See Pen. Code Section 19.8. A trial court can reduce to an infraction over a prosecutor's objection only misdemeanors listed in Section 19.8. See People v. Campbell, 104 Cal. App. 4th Supp. 1, 6 (2002) (trial court improperly reduced petty theft involving property worth less that $50, a crime not listed in Section 19.8, to an infraction over People's objection).
Factors a Court Considers
Courts deciding whether to exercise Penal Code Section 17 power can consider factors similar to other sentencing decisions. Alvarez determined in this regard that "those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in [the] California Rules of Court. ... The corollary is that even under the broad authority conferred by section 17(b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest 'exceeds the bounds of reason.' [Citations.])"
The objectives of sentencing in the Rules of Court alluded by the Supreme Court include, "(1) Protecting society; (2) Punishing the defendant; (3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses; (4) Deterring others from criminal conduct by demonstrating its consequences; (5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration; (6) Securing restitution for the victims of crime; and (7) Achieving uniformity in sentencing." Cal. Rules Court, Rule 4.410(a).
Consequences of Reduced Offense
A wobbler charged by the prosecution as a felony is deemed a felony for all purposes up to the time it is reduced to a misdemeanor. People v. Wright, 60 Cal. App. 3d 6 (1976). If a wobbler is reduced to a misdemeanor under Penal Code Section 17, the conviction is almost always considered a misdemeanor for all purposes thereafter. See People v. Park, 56 Cal. 4th 782 (2013) (felony reduced to misdemeanor is considered a misdemeanor for purposes of barring its use as a five-year enhancement under Pen. Code Section 667(a)); People v. Banks, 53 Cal. 2d 370 (1959) (felony reduced to a misdemeanor cannot be used as the element of the crime of felon with a firearm under Pen. Code Section 29800); People v. Hamilton, 33 Cal. 2d 45 (1948) (felony reduced to misdemeanor cannot be used to impeach a testifying witness under Evid. Code Section 788).
But, a wobbler reduced to a misdemeanor can still be used for some purposes. Notably, a felony reduced to a misdemeanor after the initial sentencing remains a felony for purposes of use as a prior under the three strikes law. See People v. Franklin, 57 Cal. App. 4th 68 (1997) (wobbler reduced to a misdemeanor by operation of law under Pen. Code Section 17(c) when minor was released from the Division of Juvenile Justice continues to count as a strike prior); cf. People v. Glee, 82 Cal. App. 4th 99 (2000) (wobbler reduced to a misdemeanor under Pen. Code Section 17(b) at initial sentencing does not thereafter count as a strike).